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Elements of establishing a case for DUI


Speeding. Swerving. Checkpoints. Anyone can be stopped for any traffic violation and be subject to a DUI investigation. The beginning of any defense of a DUI case is to challenge the reason that the officer stopped your vehicle. After stopping your vehicle, the officer will state that he made observations including the odor of alcohol, bloodshot or watery eyes, slurred speech, problems locating documents or any other indicators about how you interacted with the officer that would lead to a suspicion of impairment.

Field Sobriety Exercises

Field Sobriety Exercises are considered divided attention exercises meant to simulate the functions of the brain during driving. While driving the brain is doing many things. From visually watching the roadway and other drivers, using the mirrors, accelerating and braking appropriately, and steering the vehicle the brain is performing many functions at once to get a vehicle safely down the road. A Field Sobriety Exercise is designed to simulate a situation where our attention is divided among multiple tasks and instructions. Field Sobriety Exercises are not designed to result in a passing or failing “grade”. They are designed to provide law enforcement with a tool to determine a persons level of impairment. Field Sobriety Exercises include:

  • SMRL DUI Defense Sobriety test SarasotaHorizontal Gaze Nystagmus (HGN) – The Horizontal Gaze Nystagmus test or (HGN) is designed to afford the officer an opportunity to determine a persons level of impairment through observations of a driver’s eyes and how the eyes react to different stimulus. The officer will usually ask a driver to follow a pen or his finger as he takes the driver through a series of tasks which require the driver to follow the pen only with their eyes and without moving their head. Described as being similar to a windshield wiper skipping across a dry windshield, nystagmus is an involuntary jerking movement in the eye which can be caused by alcohol or drugs. Problematic to the use of HGN in the prosecution of drivers for driving under the influence, Nystagmus can also occur from neurological or other non-substance related causes. Further, specific training and experience are necessary for an officer to be qualified to testify to his observations regarding HGN. An experienced DUI attorney can assist in determining whether the HGN can be used against you in trial.
  • Walk and Turn – In this divided attention exercise the driver is generally instructed to stand with their hands by their side, with the heel of their right foot in front of and touching the toe of their left foot. They are asked to remain in that position until the instructions are completed. The driver is then instructed to take nine heel-to-toe steps on a line designated by the officer, take a series of small steps to turn around keeping one foot on the line, and then take nine heel-to-toe steps back down the line. All the while, the driver is instructed to count each step out loud, to look at their feet and to keep their hands down by their side. During this exercise the officer is watching to see whether the driver keeps the starting position while being instructed, takes the correct number of steps, correctly turns, takes heel to toe steps, whether their arms are used for balance and whether they step off the designated line. As this exercise is not a pass/fail situation, each of these observations by the officer are used to establish whether the officer feels the driver is impaired.
  • One Leg Stand – During this divided attention exercise the driver is asked to stand with their feet together and their hands by their side. They are generally instructed to raise the foot of their choice six inches off the ground with their foot parallel to the ground, look at their foot and count out loud “one-thousand one, one-thousand two…” until they are told to stop. The driver is then instructed to continue with the exercise from the number they left off of if they should put the foot down at any time. The officer will look to see whether the driver can maintain their balance, whether the arms are used for balance, whether the driver puts their foot down and how many times, whether the driver can count correctly, whether the driver follows the directions to continue the exercise from the point they stopped should they put their foot down and the driver’s estimation of time for thirty seconds. While it is not a pass/fail situation, each observation by the officer will be used to build the case of impairment against the driver.
  • SMRL DUI defense sarasota finger to nose testFinger to Nose – During this divided attention exercise the driver is instructed to stand with their feet together, to close their eyes, lean their head back and touch the tip of their index finger to the tip of their nose on the instruction of the officer as to which hand to use. The officer will observe the driver’s ability to follow instructions as to which hand to use, whether the driver maintains the position the officer asked them to stand in, whether the driver actually touches the tip of the index finger to the tip of the nose and whether the driver is able to maintain their balance during this exercise. Each of the officer’s observations will go toward establishing a case of impairment against the driver.

An arrest for DUI does not mean that you are guilty of DUI. The standard for an officer to place someone under arrest and the standard for a conviction by a jury of your peers are two very different things. At roadside, the officer’s opinion of what he saw is what determines whether you are arrested or not. Once an arrest is made, that’s it. You are generally spending the night in jail. The next step is to call an experienced DUI defense attorney to assist you through the process and help you fight against the criminal charge.


While movies and television have popularized the “right to remain silent”, commonly known as your Miranda rights, and comedians have stated that while a person may have the right to remain silent they may lack the ability, an officer normally does not have to “read you your rights” unless they are going to ask you questions which they intend to use at trial against you later. Therefore, if you are arrested but the officer didn’t read you your rights, you are not the lucky winner of a get out of jail free card. An attorney will be able to advise you on your particular facts and circumstances as to whether there are any arguments or motions that can be put forward in relation to your arrest and the reading of your Miranda rights.

Breath Test

After being arrested, the officer will request that you submit to a breath test to determine the alcohol content of your blood. The machine used to measure the amount of alcohol in your blood is called the intoxilyzer. The machine requires two valid breath samples to be provided and tests each of those samples to determine the amount of alcohol in your breath. A calculation then converts the alcohol content in your breath to determine the alcohol content of your blood. If the test shows a blood alcohol content of .08 or higher, that is evidence of driving under the influence. If the breath test shows a blood alcohol content below .08, that does not mean that you are going home. That just means that the State will not be able to point to the breath test as further evidence in their case against you. You were still arrested, you will still spend the night in jail, you will still face a potential DUI charge.

If you refuse to take the breath test, and you have previously refused to take the breath test , the second refusal can be considered a misdemeanor. If you have not previously refused the breath test, the fact that you refused the breath test can be held against you in trial and may have other consequences but does not result in a separate criminal charge.

Urine Tests

In the event an officer has a suspicion that a driver was driving under the influence of a controlled substance, the officer can request that a driver submit to a urine test. As with a breath test, a refusal to submit to a urine test can be held against a driver in court, can result in an additional misdemeanor charge if the driver previously refused a breath, urine or blood test, and can result in license suspension. If a driver submits to a urine test, however, there are no tests currently available to determine the blood alcohol content of a driver through a urine test. Accordingly, agreeing to a urine test can’t result in a determination of whether a person had a blood alcohol level of .08 or higher and therefore doesn’t expose that driver to an administrative suspension for being above the legal limit. It does expose the driver to a charge of DUI for driving while under the influence of a controlled substance. The lab results of a urine screen can hold many details regarding whether a person was actually under the influence of a particular substance at the time of driving. The metabolism of substances by the body and the specific toxicology of how substances are absorbed, retained and eliminated from the body all play a role in whether a substance found in a urine sample can establish that a person was under the influence at the time they were driving.

Drug Recognition Experts (DRE’s)

In cases where a driver is suspected of driving while under the influence of a controlled substance, often a Drug Recognition Expert, or DRE, will be called in to perform an additional investigation. The DRE is a law enforcement officer who has received specialized training in the detection of impairment by controlled substances. The DRE’s training and experience allow them to render opinions as to the impairment of a driver and as to what substances may have been impairing the driver. Those opinions are based on the observations of the DRE and can include:

  • Muscle tone
  • Eye movement/HGN
  • Pulse and blood pressure
  • Pupil Dilation
  • Condition of the tongue and mucus membranes
DUI Checkpoints

Law enforcement efforts to curb drinking and driving have extended into using checkpoints or roadblocks to weed out drivers who are impaired, driving with faulty equipment or with license issues. The legality of a checkpoint is an issue that an experienced DUI attorney will explore for their client and ensure that the rules and regulations were followed. In order to stop a vehicle, an officer has to have a legal basis. When a checkpoint is employed, there is no legal basis for the stop. Therefore, law enforcement’s plans for the checkpoint and their ability to follow those plans come under greater scrutiny. A driver, if abiding by the law, has the right to conduct himself free from interference from the government. When the government intrudes upon that right through the use of checkpoints, a driver’s rights must be protected and that is why the plans and the execution of those plans by law enforcement become so important. If you were stopped in a DUI checkpoint, consult with an experienced DUI attorney who can ensure that your rights are protected.

Traffic Infraction Tickets

Many times an officer will issue additional citations to a driver charged with DUI based on the driving pattern observed or the status of a drivers insurance, registration or license. These additional tickets may be criminal, they may be civil and require the payment of only a fine, and they may be moving violations that will result in points being assessed to your drivers license and, in turn, may suspend your driving privilege. If you have received multiple tickets as a result of your DUI arrest, bring those tickets to our experienced DUI attorneys so we can guide you on how to properly handle and dispose of those tickets.